Farm labor board rules Gerawan guilty of ‘extensive’ and ‘illegal misconduct’ in violating state labor law

The full Agricultural Labor Relations Board issued a unanimous 81-page decision on Friday, April 15 decisively affirming the 192-page Sept. 17, 2015 opinion by an ALRB administrative law judge finding the giant Fresno-based tree fruit grower Gerawan Farming Inc. guilty of “commit[ing] numerous” violations of California labor laws (P. 68). Judge Mark R. Soble ruled last year after hearing sworn testimony from 130 witnesses in 2014 and 2015. The ruling by the Sacramento-based ALRB sets aside the Nov. 5, 2013 election to attempt to decertify the United Farm Workers and dismisses the decertification petition. Ballots from that vote were not counted. (Page citations follow excerpts from the ALRB judgment.)

The ALRB decision orders Gerawan to “cease and desist from aiding, assisting, participating in or encouraging any decertification campaign and…interfering with, restraining, or coercing any agricultural employees in the exercise of their rights” under the farm labor law. (P. 69).” For the entire official decision, see: https://alrb.ca.gov/content/news/news.shtml#Gerawan and https://alrb.ca.gov/legal_searches/decisions/42_1(2016).pdf

In his concurring opinion, ALRB Chairman William B. Gould IV wrote, “The voluminous record and numerous findings of the [administrative law judge] in this case clearly established the illegal conduct of Gerawan, and the fact that it is guilty of extensive misconduct under the ALRA [Agricultural Labor Relations Act] (P. 79).” “The record of illegal misconduct in this case by which conduct the employer unlawfully inserted itself into the electoral process through a variety of means…is amply documented by the thorough, deliberate and carefully balanced findings and conclusions of the [judge] (P. 79).” Gould was also chairman of the National Labor Relations Board under President Bill Clinton.

Gould ruled that “though the decertification was filed by employees, by the ways found by the [judge], and affirmed by our decision, the employer became a principal party to that effort. To certify the results of this election would be to make the employer the ‘benevolent champion’ of those rights (P. 76).”

Gould described the principle “that labor policy promotes democracy in the workplace,” and cited “oppressive tactics engaged in by private parties as well as the state in the civic life of the nation and in well-known instances of authoritarianism abroad (Ps. 76-77).” “The same principles [are] to be deemed applicable to the employment relationship and the reduction of inequality between employer and employee,” he wrote.

In its lengthy ruling, the Agricultural Labor Relations Board determined that:

• “Gerawan discriminatorily permitted anti-union signature gathering during work time while prohibiting pro-union activity of the same kind (P. 68).”

• “Gerwan granted [decertification campaign leader Silvia] Lopez a ‘virtual sabbatical to conduct the decertification effort (P. 68).”

• “Gerawan did not discipline [decertification petition] signature gatherers for missing work, but continued to enforce its absence policies among the rest of the crew (P. 68).”

• “Gerawan tacitly approved an unlawful work blockage, which, although instigated by the decertification petitioner supporters, directly facilitated the gathering of the signatures for the showing of interest [to trigger an election] (P. 68).”

• Gerawan colluded with the CFFA [California Fresh Fruit Association, an industry group] to make arrangements for the decertification petitioners to travel by bus [with hundreds of Gerawan workers] to Sacramento in order to protest the dismissal of the first decertification petition, thus condoning employees taking time off from work to join the protest (Ps. 68-69).”

• Gerawan granted a wage increase during the decertification campaign and unlawfully solicited grievances” against the union (P. 69).

The farm labor board concluded, “Given the totality of the circumstances and Gerawan’s unlawful actions, we conclude that it is impossible to know whether the signatures gathered in support of the decertification petition represented the workers’ true sentiments. We affirm the [judge’s] conclusion that Gerawan’s unlawful and/or objectionable conduct tainted the entire decertification process, we adopt his recommended remedy dismissing the decertification petition, and setting aside the election (P. 69).”

—“Unlawful assistance With and Support of the Decertification Campaign; Allowing the Decertification Proponents to Gather Signatures in the Crews During Work Time Constitutes Unlawful Assistance (P. 22)”

Decertification proponents were allowed by the company to solicit signatures on decertification petitions in the fields during working hours. Judge Soble “found that farm labor contractor crew boss Jose Evangelista signed the decertification petition on behalf of 18-20 crew members in mid-September 2013, and told them what he did (P. 22).”

“The evidence supports the conclusion that Gerawan discriminated in favor of decertification activity. This disparate treatment of pro-decertification workers reasonably could create the impression that the company was sponsoring, or at least supporting, the solicitation of signatures in favor of decertification. Therefore, we find that Gerawan was responsible for assisting the circulation of the decertification petition in those instances where supervisors allowed the circulation on work time (Ps. 23-24).”

—“Gerawan Unlawfully Assisted and Supported the Decertification Campaign Through Favorable Treatment of Lopez and Other Decertification Signature Gatherers (P. 29).”

“We agree with the [judge’s] finding that [decertification leader Silvia] Lopez was granted a ‘virtual sabbatical’ of almost two and a half months by the employer to circulate the decertification petition. She began missing work without consequence in August 2013, despite having been hired in late June 2013, and despite the company employment handbook’s provisions for discipline for excessive absences (P. 30).”

—“The Employer’s Tacit Approval of the September 30, 2013 Work Blockage Supports a Finding of Unlawful Assistance and Disparate Treatment. In Addition, There is Authority for Imputing Liability for the Petitioner’s Group’s Violation of the Act to Gerawan (P. 32).”

“The [administrative law judge] concluded that the decertification proponents blocked the ranch entrances because they were convinced that it was their only hope to gather the signatures they needed after the [ALRB] regional director dismissed the first petition (P. 33).”

“It is undisputed that the work blockage on September 30, 2013, caused a huge disruption in Gerawan’s operations during the busiest time of the year. [Gerawan Farming owner] Dan Gerawan estimated that the financial loss due to the work stoppage was between $100,000 and $200,000 (P. 34).”

“We find that Gerawan’s tacit approval of the blockage supports a finding of unlawful assistance and disparate treatment (P. 37).”

—“Gerawan Was Complicit in the California Fresh Fruit Association’s Financial Support of the Decertification Effort (P. 37).”

“The first decertification petition was filed on September 18, 2013. On September 25, 2013, that petition was dismissed. Shortly thereafter, CFFA [California Fresh Fruit Association] President Barry Bedwell made the CFFA credit card available to petitioner’s counsel Joanna MacMillan so workers could go to Sacramento on chartered buses on October 2, 2013, to attend a protest spearheaded by the decertification petitioner’s group (P. 37).” It is illegal under both state and national labor law for an employer or employer association to provide financial support to a group purporting to represent workers.

“There is ample circumstantial evidence supporting the inference that Dan Gerawan and Bedwell communicated about the trip, and that Dan Gerawan knew about the CFFA’s payment for the trip ahead of time (P. 38).”

“The CFFA’s support of the decertification effort was done in plain sight of Gerawan, yet Gerawan sat idly by and did nothing to prevent or distance itself from it. In these circumstances, an employer can be held liable for the actions of a third party (P. 40).”

“From the point of view of the average employee, we find it reasonable that one would believe that Gerawan paid for the trip and arranged for the charter buses to pick up workers next to the company office, or at least authorized and condoned such actions, and gave employees who went to Sacramento permission to leave work on a busy harvest day without consequence. In these circumstances, Gerawan can be held liable for the unlawful support provided to the decertification proponents (P. 43).”

“We find Gerawan unlawfully supported Lopez and the decertification effort by its affirmance and ratification of the CFFA’s financial contributions. Gerawan’s conduct, or lack thereof, further contributed to an atmosphere that made it impossible for an impartial election to be held (P. 48).”

“…we find that Gerawan, through its complicity with the CFFA, provided unlawful support for the decertification effort (P. 54).”

—“The ALJ [administrative law judge] Properly Rejected Gerawan’s Abandonment Defense P. 56).”

‘The [administrative law judge] properly rejected Gerawan’s argument that ‘abandonment’ by the union was a defense per se in his September 25, 2014 order. He also properly ruled that evidence would not be permitted for the purpose of trying to establish whether or not the UFW became inactive at the company. The Board has held that, under the ALRA, an employer’s claim that a certified union was inactive with respect to the employer and/or bargaining unit employees, even for an extended period of time, does not establish a defense to the duty to bargain (frequently referred to as an “abandonment’ defense)… We uphold the [administrative law judge’s] handling of this argument (P. 57).” The UFW has documented its repeated attempts to negotiate a union contract at Gerawan since winning an election in 1992.

—“The ALJ [administrative law judge] Properly Found that the Wage Increase for Grape Packing Workers Was a Violation of the Act and that It Would Have Had a Coercive Effect (P. 57).”

“On October 25, 2013, the day that the second decertification petition was filed, [Gerawan Farming owner] Mike Gerawan unilaterally increased the piece rate for field grape packers from $1.25 per box to $1.50 per box. Mike Gerawan conceded that the reason for the increase was an encouragement and a reward. The [administrative law judge] reasoned that this ‘well-timed’ increase, along with the free food given to workers, would have created a celebratory atmosphere that workers would have ‘unmistakably attributed to company joy over the decertification petition filing (Ps. 57-59).’”

“We uphold the [administrative law judge] on this issue and find that the wage increase would have had a coercive effect on workers’ free choice in the election. Granting benefits to employees in an effort to influence a representation election is clearly an unfair labor practice (Ps. 58-59).”

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